The 9th Circuit Erred Again: Youngstown does not support the existence of an “equitable ultra vires cause of action”
Today the 9th Circuit decided Sierra Club v. Trump. In this case, the environmental group challenged the Trump administration’s transfer of appropriated funds to construct a border wall. The 9th Circuit previously upheld a district court injunction in this case. However, the Supreme Court stayed that ruling by a 5-4 vote. The per curiam order explained:
Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.
At the time, Seth Barrett Tillman and I wrote a lengthy post explaining why the Plaintiffs lacked an equitable cause of action to challenge ultra vires action. This analysis was based on our work on the Foreign Emoluments Clause. In that litigation, the Plaintiffs have also asserted a general equitable cause of action to challenge illegal government conduct. (Judge Wilkinson’s recent dissent eviscerates this position.)
On remand, the Ninth Circuit held that the plaintiffs do in fact have “an equitable ultra vires cause of action to challenge the Federal Defendants’ transfer.” This opinion is flawed on several grounds.
First, the court conflates illegal conduct with the ability to challenge illegal conduct in court. The panel writes:
Equitable actions to enjoin ultra vires official conduct do not depend upon the availability of a statutory cause of action; instead, they seek a “judge-made remedy” for injuries stemming from unauthorized government conduct, and they rest on the historic availability of equitable review….The relief Sierra Club requests has been traditionally available. “The ability to sue to enjoin unconstit
Article from Latest – Reason.com